Three weeks ago, DRCNet ran an interview with Steven Silverman of Flex Your Rights (http://www.flexyourrights.org), a new organization devoted to teaching US residents how to exercise their remaining constitutional rights during encounters with police officers. The interview struck a nerve among DRCNet readers: Silverman reported that after the interview appeared, the number of visitors to his web site soared from about 250 per day to nearly 10,000.
Silverman argued that US residents are amazingly ignorant of what their rights are and how to exercise them effectively during police encounters. Many, many drug arrests could be avoided if Americans were educated about how to exercise their rights, Silverman told DRCNet. Now, a case from North Carolina indicates that it is not just citizens but police officers as well who may need to be educated about the Constitution -- and one North Carolina law enforcement agency may soon be learning the hard way.
Durham, NC, resident Maurice McKellar Jr. last month filed a lawsuit in North Carolina state court alleging that a North Carolina Highway Patrol officer rode roughshod over his constitutional right not to consent to a vehicle search during a June 23, 2001 traffic stop. According to McKellar's complaint, he was stopped for speeding on Interstate 40 by Highway Patrol Trooper Fred J. Hargro Jr. McKellar did not contest the speeding charge, but, exercising his constitutional right not to consent to a warrantless search, refused to allow Hargro to search his vehicle.
"They wanted to search my car for drugs," McKellar told the Durham News & Observer last Friday. "I knew I didn't have any drugs, but it's my constitutional right to refuse a search of my car. When I said no, he should have given me my speeding ticket and let me go on my way. I gave them no reason and there was absolutely no reason to search my car."
Although McKellar was absolutely within his rights to refuse such a warrantless search, that's when things began to go bad. According to McKellar's complaint, instead of accepting his refusal to consent, Hargro responded by calling for back-up. Four more troopers arrived at the scene, along with a drug-sniffing dog. McKellar three more times refused to consent, at which point Hargro placed him under arrest for careless and reckless driving and speeding. (Under a recent Supreme Court ruling any traffic violation, no matter how trivial, may be considered an arrestable offense.) With McKellar now under arrest, the troopers were able to search the vehicle "incident to arrest." The vehicle search turned up a single prescription anti-depressant pill. Although McKellar told the troopers he had a prescription for the pill, he was then charged with possession of a controlled substance. He was tightly handcuffed and taken to jail.
When he appeared before a magistrate later that night, the magistrate dismissed the controlled substance charge and freed McKellar without bail. McKellar then had to pay $50 for a taxi ride back to his vehicle. McKellar also complained that the tight handcuffs damaged nerves in both his hands and cited doctors at Duke University Medical Center to support that claim.
McKellar filed a complaint about the stop with the Highway Patrol, but the agency, citing rules regarding "personnel matters," refused to divulge what action, if any, it had taken against Trooper Hargro. But, Highway Patrol commander Col. Richard Holden told McKellar in a letter last November, "you can rest assured that I have reviewed the report of the investigation and appropriate action has been taken." That wasn't good enough for McKellar.
On June 12 he filed a negligence claim against the Highway Patrol's parent agency, the North Carolina Department of Crime Control and Public Safety, claiming that he was unjustly punished for exercising his constitutional rights. The state agency was negligent, McKellar argued, because it failed to properly train Trooper Hargro. Because McKellar filed his claim with the state Industrial Commission, which is set up to hear workers compensation cases and tort claims alleging negligent actions by state employees, he could be awarded up to $500,000 for "humiliation, emotional distress, physical pain, and mental suffering."
"McKellar did exactly the right thing," said Silverman of Flex Your Rights. "He had nothing to lose and everything to gain by doing so. And he is doing the right thing in filing a lawsuit. Suing North Carolina for big bucks could help reform the system. It would certainly give the state an incentive to follow the Constitution."
But McKellar's experience should sound a warning bell for those who are actually carrying contraband. Although any arrests resulting from evidence gathered in warrantless searches where no consent has been given may eventually be quashed, persons caught up in such affairs will still have to undergo the trauma and expense of arrest and subsequent legal battles. Until law enforcement agencies are willing to uphold the Constitution when it comes to consent searches, the only recourse for those whose rights have been violated may be a lengthy legal battle. But all it will take is one winning lawsuit in a state and law enforcement agencies will begin to take notice. "Flexing" one's rights by clearly stating one's non-consent to a possibly illegal search can increase the likelihood of victory later.